#### Chicago Title and Trust Co., Executor, v. City of Chicago.

1. Injunctions—No Wrong Committed by Applicant Unless He Has Acted Maliciously and Without Probable Cause.—An injunction is not the act of the party applying for it, but the act of the court. It issues because the court is of the opinion that it ought to issue and so orders. No wrong is committed by the applicant although it is dissolved, unless he was acting- maliciously and'without probable cause.

3. Same—Damages for Maliciously Suing Out, Not Recoverable in an Action upon an Injunction Bonpl.—Damages "for the malicious suing out of an injunction can not be recovered in an action upon the injunction bond.

3. Damages—Must be the Natural and Proximate Result of the Wrongful Act.—Damages must always be the natural and proximate result of the wrongful act complained of. If a new force or power has intervened, of itself sufficient to stand as the cause of the injury, the first must be considered as too remote.

Bill for an Injunction.—Appeal from the Superior Court of Cook County; thé Hon. Jesse Holdom, Judge presiding. Heard in the Branch Appellate Court at the October term, 1903.

Affirmed.

Opinion filed November 17, 1903.

*396This is an appeal from an assessment of damages upon the dissolution of an injunction.

On September 25, 1884, the then Town of Lake View-filed its bill of complaint against Parker R. Mason, Henry Kohlsaat and Peter,Kohlsaat, alleging, among other things, that blocks 5 to 16 of Pine Grove, a subdivision of part of fractional section 21, T. 40 H., R. 14, in Cook county, Illinois, extended from Evanston avenue to Lake Michigan, and in said subdivision blocks 6, 7 and 12 thereof were so laid out that each was bounded on the east by a line marked on the plat of the subdivision; that between said line and the lake shore was a strip of land extending from the north to the south line of said subdivision, and that the defendants, pretending to be the owners of said strip, were engaged in carrying away sand and gravel therefrom. The bill prayed to enjoin them from doing so. ■ On the same day an injunction to that effect issued without notice to the defendants and was served on Parker R. Mason. It remained in force until July 13, 1885, when it was dissolved. A suggestion of damages was filed August 15,1885, and at the July term, 1902, of the Superior Court, a decree was entered assessing damages in favor of appellant as executor of Mason, who had died pending the suit, and against appellee as legal successor of the Town of Lake View.

It appears that upon the hearing of the bill, which took place in July, 1892, a final decree was entered sustaining the bill and restoring and making perpetual the preliminary injunction. vThis decree was reversed by the Supreme Court, and its opinion, favorable to Mason, is part of the present record.

The strip of land in respect of which the bill asked for afi injunction lay in front of said blocks 6, 7 and 12, between their east line and the lake, and was 2,172 feet long from north to south, and from 160 to 177 feet wide. Since 1871 Mason had been in possession and claimed to be the owner of the land in front of block 7, and considerable to the north and south of it. The length of that part of the strip in which he was interested was claimed by him to be 1,858 *397feet. In his suggestion of damages he asked, first, solicitor’s fees for procuring the dissolution of the temporary injunction; second, damages for the value of the sand and gravel which he was enjoined from removing during the lifetime of the injunction; and third, damages to his lawn lying west of the strip in controversy by reason of the sand blowing and drifting thereon. For the first item the court allowed $500, and with this appellant is satisfied. For the second item the court allowed $500, whereas appellant contends it should have been allowed $10,000. Item Ho. 3 was rejected altogether.

Edward Roby and Arthur Humphrey, attorneys for appellant.

Granville W. Browning, attorney for appellee; Charles M. "Walker, Corporation Counsel, of counsel.

Mr. Justice Stein

delivered the opinion of the court.

First. The proof tends to show that the lake washes sand and gravel upon the strip from time to time, and the wind drifts sand thereon; that the sand and gravel have a merchantable value, and Mason was in the habit of removing and selling them both before and after the injunction; that when holes were dug in the sand for the purpose of removing it, the wind arid the lake would in the course of time refill them; that gravel not taken is liable to be washed away and buried by the lake, and sand not caught is liable to drift and be blown away. It was upon the gravel and sand which disappeared and were dissipated while the temporary injunction was in force that the second item was predicated.

There is no proof how much sand or gravel was on hand when the injunction issued or at any time while it was in force, or how much was taken out and sold during that time. Mason himself testified that he could not tell and that he kept no account except for eight or nine months “ about two years ago,” (he testified April 19, 1890). Ho books or account were offered in evidence. “ The children *398took the money and I took money and everybody took money; I think if I got half of it I was lucky.” “ There were no regular customers. Kept no account with any one.”

There is proof that the quantity of the sand and gravel on Band at any time was uncertain; it depended on whether there was wind, and its velocity and direction. For weeks and sometimes for a month no sand or gravel could be had. Frequently when the gravel (which was the more valuable) was washed in, it would be washed away by the action of the water unless at once removed. Both the sand and gravel were treated as public property. They were taken away without paying for them. One witness says :

“ They (meaning people generally) carted away hundreds of thousands of loads ” from the strip in controversy and the beach to the north and South of it. “ In regard to this strip they would get there at three o’clock in the morning and cart it away. It was denuded of sand from one end to the other.”

The only item of testimony savoring of certainty and of sufficiently specific character to afford a foundation for calculating the damages is that of Mason when he says that before the injunction he took in from §15 to §70 per day, and after the injunction “ the same, all the way from $15 to $40 per day.” This testimony was given nearly five years after the dissolution of the injunction, which perhaps accounts for the witness regarding $40'and $70 as the same. It is apparent that the witness had no data to base it on, and that it was but conjecture and surmise. When it is borne in mind that the winter season would naturally interfere with his operations, the amount assessed as damages under this head would seem to be sufficient.

The contention of counsel—not supported by any of the cases which they cite—that no definite proof from which damages can be computed is requisite, that the complainant having obtained an injunction which was dissolved occupies the position of a tort feasor, and that damages should be awarded upon that theory, is not tenable. The assessment should not exceed the damages actually sustained. *399Collins v. Sinclair, 51 Ill. 328. An injunction is not the act of the party applying for it, but the act of the court. It issues because the court is of opinion it ought to issue and so orders. Ho wrong is committed by the applicant although it be dissolved, unless he was acting maliciously and without probable cause. Here no such claim is put forward, and if it were there is no proof to sustain it; and if there were such proof it would not avail in this form of proceeding. Damages for the malicious suing out of an injunction can not be recovered in an action upon the injunction bond. So held in Burnap v. Wright, 14 Ill. 301, a suit on a ne exeat bond, the condition of which was substantially the same as that of the bond herein.

Second. For the injury to Mason’s lawn by the sand being blown thereon from the strip on account of his being enjoined from removing it, the complainant in the bill can not be made responsible. The proximate cause of the injury was the wind and not the injunction. The damages must be such as naturally result from the issuing of the writ; remote and speculative damages should not be taken into consideration. Burnap v. Wight, supra. They must always be the natural and proximate result of the wrongful act complained of. If a new force or power has intervened, of itself sufficient to stand as the cause of the injury, the first must be considered as too remote. Schmidt v. Mitchell, 84 Ill. 195; Shugart v. Egan, 83 Ill. 56; T. W. & W. Ry. Co. v. Muthersbaugh, 71 Ill. 572.

Moreover, the damage to the lawn by reason of the injunction was impossible of ascertainment. The witnesses unite in testifying that the sand blew and for years had blown all over that country like snow. “ It was a wilderness of sand.” There is no way of determining from the proof how much sand was blown upon the lawn from the territory affected by the injunction and how much from the adjoining lands.

The decree is affirmed.